Betsy DeVos finally, formally announced her intent to repeal the Obama administration’s campus sexual assault protections. Activists in the field were gutted, but not surprised. The vast and multivalent nature of Betsy DeVos’s awfulness has been well-covered; her refusal to commit to supporting sexual assault survivors under Title IX has been public knowledge since her confirmation hearings, and this roll-back is something activists have been dreading all year. The question is how — in a climate of secrecy, disinformation, and startling lack of support — those activists can fight back.
“I’ve been hearing a lot from people who are usually fierce critics of the Trump administration that we should give Betsy DeVos a chance, see what she does with this,” says Alexandra Brodsky, a fellow at the National Women’s Law Center and co-founder of advocacy group Know Your IX. “But we have every reason to be skeptical.”
Obama’s campus sexual assault protections, as put forth in the 2011 “Dear Colleague” letter, have always been controversial. Under the terms of Title IX, sexual harassment and assault qualify as gender discrimination. Universities that receive federal funding are therefore required to investigate and report sexual harassment and assault allegations. This has always been the case. But, under the best practices laid forth by the “Dear Colleague” letter, those investigations use a lower standard of evidence than a criminal court; where a rape conviction would only come in the absence of a reasonable doubt, a school can expel an accused rapist based on a “preponderance of evidence,” which is the standard used in civil litigation.
Critics of the “Dear Colleague” letter, like DeVos, frame it in dystopian terms, accusing schools of setting up extra-judicial kangaroo courts where students can be expelled without being given the chance to defend themselves, or without even knowing what they’re accused of. In her speech announcing the rollback, DeVos painted the existing regulations as potentially deadly, particularly for accused rapists: “One mother told me her son has attempted to take his life multiple times. Each time she opens the door to his bedroom, she doesn’t know whether she will find him alive or dead.”
This panic isn’t confined only to conservative policymakers. Earlier this year, cultural critic and professor Laura Kipnis published an entire book, Unwanted Advances, on the topic, painting the modern campus as a grim totalitarian state where abusive, all-powerful students use Title IX accusations to ruin teachers at will. Emily Yoffe has devoted a three-part series in The Atlantic to examining how accused rapists have been denied due process under the current system. And in a piece for Slate, Mark Joseph Stern has pitched DeVos’ repeal-and-comment as a win for liberals: “DeVos and her staffers are not the people whom progressives would choose to rewrite Title IX rules,” Stern wrote. “But the fact remains that the current regime is broken and that DeVos has an opportunity to fix it.”
The problem with “fixing” that “broken system,” according to Brodsky, is that many critics don’t actually know how that system works in the first place. She, and most activists I spoke to for this piece, insists that DeVos is pushing wild amounts of misinformation — particularly about the protections available to accused rapists, whom she paints as victims of massive injustice — in order to justify a repeal. This, in turn, is being eaten up by a culture quicker to empathize with the accused than with their victims.
“The ‘Dear Colleague’ letter articulates a really robust set of protections for accused students that go well beyond constitutional protections for students who are accused of punching somebody in the face — or another similar offense,” Brodsky tells me. “Schools have to provide notice to students about the content of the accusations, they have to provide access to the record upon which they will be judged. Everything they provide to one party they need to provide to the other.”
In particular, the letter specifies that “[throughout] a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.” If the school chooses to allow lawyers into the proceedings, both students must be afforded counsel. In fact the letter flat-out states that due process for the accused is mandatory: “Public and state-supported schools must provide due process to the alleged perpetrator,” the letter affirms. “However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.”
So, though DeVos can list scary examples of students being kicked out of school without warning or recourse, those examples don’t actually describe schools following the guidance of the “Dear Colleague” letter; “all of the examples DeVos gave [in her speech],” Brodsky tells me, “are examples where Title IX would be really powerful in protecting the accused students.”
Advocates allege that DeVos and her ilk are asking for the standard of proof for rape to be higher than that of any other offense. After all, schools routinely expel students for less. If you can be kicked out of a university for smoking pot in a college-owned dorm, it makes sense that you could also be kicked out for assaulting a fellow student — and the school is not legally required to wait for the results of a police investigation and/or trial, which can take years, before making its decision.
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